Frith v. Campbel

By'the Court, Geo. G. Barnard, J. It is very clear that the allowances made in the judgment to the attorneys appearing cannot be upheld under the Code. There was no defense interposed, and of course there could be no trial' had. The action was instituted to prove a will under the Revised Statutes, executed according to the laws of this [327] state, the original will being in the possession of an English court of probate. The answers admitted the allegations of the complaint and joined in a prayer for probate here. Section 309 of the Code did not, therefore, apply. The allowances to the defendants’ attorneys, must, therefore, of necessity be reversed. As to them the court had no authority to give any thing except for costs. The attorney for the plaintiffs had rendered valuable services; the plaintiffs are executors; the service has been performed upon the employment of the plaintiffs and in the execution of their duties as executors, and the rule undoubtedly is that the estate must indemnify the executors for their necessary expenses, including counsel fees reasonably and properly paid. ' (Downing v. Marshall, 37 N. Y. Rep. 380.) I think the amount allowed unreasonable. The plaintiffs, as executors, would not have been justified in paying $3000 as counsel fees in the action to obtain the probate of this uncontested will. The court should not allow an amount which would be unreasonable if the executors had paid.it without the order of the court. The plaintiffs’ attorney has his action against the executors for such sum as he can establish at law as the value of his services. The executors may pay their attorney such sum, therefor, as they are satisfied will pass on final settlement of their accounts. Instead of fixing an amount for the counsel fees of the plaintiffs’ attorney, allowing what would be proper if the trust estate was to be removed from the plaintiffs’ hands, it is best to reverse the order making these allowances and leave the attorney for the plaintiffs to establish his right in a more formal and recognized manner. [New York General Term, January 4, 1869. Order reversed, without costs. Clerke, Ingraham and Geo. G. Barnard, Justices,],